Assault suit against police chief heading to trial

Thursday

Jun 14, 2018 at 1:08 PMJun 14, 2018 at 5:30 PM

Elizabeth Dinan edinan@seacoastonline.com @DinanElizabeth

PORTSMOUTH — A judge has allowed an assault and battery allegation against Police Chief Robert Merner to proceed to trial, while dismissing a claim that Merner violated the Massachusetts Civil Rights Act.

The allegations are made in a civil lawsuit filed in the U.S. District Court of Massachusetts by Leominster (Mass.) police officer Michael Deluca, who claims he was off duty when Merner shoved him on June 7, 2013, after a Boston Bruins playoff game. Merner was a Boston police supervisor charged with crowd control outside TD Garden at the time, by all accounts.

Merner reiterated Thursday that he cannot comment about the pending litigation.

Deluca alleges in court filings that Merner “came right up to my face and started screaming profanities,” poked him in the chest and “gave me a quick double open hand palm strike to my shoulders.” He also claims he identified himself as a police officer to Merner, who responded he didn’t give a (expletive), before taking Deluca’s Bruins sign, ripping it and launching it like a Frisbee into a crowded street.

The Boston legal office had asked the Massachusetts court to dismiss the civil suit. In a responsive decision published Thursday, Judge Timothy Hillman wrote that while Merner's "use of force occurred within his discretionary functions, I find that the facts may permit a reasonable factfinder to conclude that he was not acting in good faith."

The judge wrote that viewing the facts in a light most favorable to Deluca, "Mr. Deluca did nothing to warrant such aggressive behavior by Officer Merner."

"Officer Merner approached Officer Deluca from the start in an aggressive manner yelling expletives, pointing his finger in Mr. Deluca's face, poking his chest, shoving him, and ripping the sign out of his hand," the judge's order states. "Mr. Deluca was the only individual in the area of the Ace Tickets window and although the street was crowded, no one around him was acting disorderly. I find these facts taken together could allow a reasonable jury to conclude that Officer Merner acted with hostility towards Mr. Deluca as a result of bad faith."

Deluca also claimed his civil rights under Massachusetts law were violated when he, his wife Dawn and another couple were ordered by Merner and other Boston officers to leave the area, were threatened with arrest for refusing to leave and subjected to physical force. Deluca's wife claims in the same suit she was “launched” sideways by another police officer working crowd control.

Their lawsuit alleges Massachusetts case law establishes people's right to move freely and "peaceably dwell" in public places, but the judge noted that decision came two years prior to the disputed incident so the right was not clearly established. In his decision Thursday, Judge Hillman wrote the officers are entitled to "qualified immunity" and Boston officers have a duty to maintain public safety, which includes controlling crowds.

"Furthermore, looking to the particular circumstances of this case a reasonable officer could have believed that demanding a person to leave the public area, even rudely, and threatening to arrest him or her for failing to comply, was lawful," the judge's order notes. "The Delucas were walking on Causeway Street after the Bruins had won a playoff game with thousands of other fans. Additionally there are a large number of bars, which are particularly busy during sporting events, located around the area of Causeway Street. Many people drink during sporting events and people's emotions run high especially during playoffs."

The judge also allowed an assault and battery charge against Boston officer Charles Moore to proceed to trial, which alleges he assaulted Deluca's wife during the same incident.

The case is scheduled for a jury trial commencing Aug. 27 in the Worcester (Massachusetts) District Court.

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